‘Working out the Split’: Creative Collaboration and Assignation of Copyright across Differing Musical Worlds.

Introduction

When songwriters sit down to write a song there are multiple ways they can do it. They can start with a title, the first line for the verse, a chorus fragment, a set of chords, a sound they have heard and want to emulate, a narrative idea, a simple desire to express a feeling or the deadline of a pressing brief that will put the dinner on the table. There are many, many more ways to do it. There are also multiple combinations of ways for writers to collaborate. They could split the work evenly between writing lyrics and writing music, one could rewrite the lyrics to an already existing song and then pass on the new lyrics alone to their partner to write new music to, both could write the lyrics and one could come up with the melody, six people could work out the arrangement and one could take it away to write the top line and then they could all add the lyrics to that top line. Maybe two people could get together over tea, start from scratch and within two hours have the core components of a song fully fleshed out and ready to be orchestrated and recorded, as was often the case with Lennon and McCartney during their productive middle period (McIntyre, 2009a). The combinations of collaboration seem to be limitless. Most often, most writers are not too concerned with who does what or how it happens that the song is created. Until of course it’s time to work out the ‘split’ or financial remuneration for the work involved. Then a number of complex financial, legal, moral, social, cultural, ideological, discursive and, dare we say, mythological factors become very important. However, before we give an analysis of this situation it may be best to outline a little of what we already know about creativity and collaboration, copyright and how this relates to popular music.

Background To The Study: The Creative Process

Creativity as a basic human phenomenon has been well researched, in certain quarters, over the last half century. In other quarters it has been seen as a taken-for-granted given; a commonsense understanding based on well-worn and sometimes uncritically examined ideas (for summaries see Sternberg 1999, Pope 2005, Sawyer 2006, Negus & Pickering 2004). As one example of the move to dislodge a primarily Romantic individually focused perspective of creativity Nicholas Cook argues that while:

traditional musicology has focused almost exclusively on the creative role of composers, it is more productive to understand creativity as distributed across the participants in musical practice, while composition itself – often seen as the paradigm of individual creation – is better understood in implicitly social terms. (Cook, 2010: online)

Like a number of others, (Amabile 1983 & 1996, Dacey & Lennon 1998, Csikszentmihalyi 1988, 1997 & 1999, Weisberg 1993, Sternberg & Lubart 1991 & 1992, Bourdieu 1977, 1990, 1993 & 1996), Cook’s ideas tend toward the proposition that creativity must result from the emergent properties of a multifactorial process at work. This proposition falls into line with the move toward seeing creativity as the confluence of a multi-factorial process at work. The systems model of creativity developed largely by Mihaly Csikszentmihalyi, applied previously in a number of music related settings (McIntyre 2010, 2009, 2008 and 2007), conforms to this view. It can be similarly claimed that the idea of collaborative creativity developed by Paulus and Nijstaad reflects the ideas embedded in the systems model of creativity (Kerrigan & McIntyre, 2010). To take these propositions further this way of seeing collaborative creativity is similar in essence to the notion of distributed creativity suggested above by Cook (2010: online). The notion of distributed creativity has been used in explaining creativity across innovation networks and, as Reijo Miettinen argues (2006: 173-181), is deeply related to perceiving creativity as systemic. These related ways of seeing creativity may suggest an avenue for understanding not only musical performance but also musical composition and, in terms of this paper, it may have some bearing on songwriting as a central creative practice within popular music. If these ideas are eventually proven to be accurate then this conclusion may have some implications for copyright law, the basis of the popular music industry’s ability to generate profit.

Copyright Law & The Music Industry

While copyright law itself legitimates rather than precludes collaborative authorship (e.g.CDPA 1988, Chapter 1, Part 1, Clause 10 “Works of joint authorship”), it can be argued that legal interpretation of song ownership in the case of disputes has tended toward the conclusion that the song equals the vocal melody, underlying chords and lyrics, i.e. Those elements that would have appeared in music publishing’s initial main source of income, printed sheet music. In reference to this Free (2002) cites the following conditions for establishing joint authorship:

(i) there must be a collaboration in the creation of a new musical work;

(ii) there must be a significant and original contribution from each author; and

(iii) the contributions of each author must not be separate.

While the authors could find no clause directly stating that a joint author’s contribution must be “significant and original” in either the 1988 or 1956 UK copyright acts, as stated by Free, judicial interpretation of legal disputes over songwriting copyright suggests that Free’s interpretation that decisions in law are based on conventional and traditional views of songwriting appears to be correct (see Bently (2009: 190) for examples of case law where the judicial summary has incorporated this exact phrase). In these decisions it appears to be a significant criterion, at least in UK cases involving song authorship. This situation can be seen clearly in the case of Hadley & Others v Kemp (cited in Free, 2002: 96-97). In his judgement, Mr Justice Park described Gary Kemp’s creative contribution to the writing of songs for Spandau Ballet in the following way:

He developed, and fixed in his musical consciousness, the melody, the chords, the rhythm or groove, and the general structure of the song from beginning to end. Usually at the same stage he wrote the entire lyrics for the song. ([1999] Hadley v. Kemp, 450, N3).

Mr Justice Park, in reference to the case Stuart v Barrett, (1994) also acknowledged that while it was indeed possible for a work of joint authorship to have arisen from a jamming session in a rehearsal room, his view in this case was that Gary Kemp was the sole author:

There is a vital distinction between composition or creation of a musical work on the one hand and performance or interpretation of it on the other… It is certainly true that the members of the band sang or played in their own ways (and, in so far as I am able to judge, did so excellently)…The members of the band… did what any good musician does: they performed the songs to the best of their considerable abilities, injecting elements of individuality and artistry into their performances. ([1999] Hadley v. Kemp, 450, N5).

However satisfying the distinction between contributions to ‘original musical works’ and ‘original arrangements of musical works’ may be to a lawyer (cf. Fisher v. Brooker 2006, paras. 52 – 53), one is left with a sense of unease at the result in Hadley v. Kemp. In part, this unease stems from the consequences that flow from regarding Kemp as the sole author of these musical works, especially ‘True’. For example, were someone to copy the saxophone solo on ‘True’ (for example, to sample it, or make it available for use as a ringtone), Gary Kemp (not [saxophonist] Norman) would be able to claim that the copyright in the music had been infringed (Arnold 1999, pp. 468 – 469). Given the prevalent assumption that sampling a 35 second saxophone sole would infringe copyright in a musical work of six minutes length (Abramson & Bate 1997; Ludlow v. Williams 2002), one cannot but feel that there is a mismatch between the tests copyright law uses to establish authorship, and the tests used to establish infringement. Perhaps more concerning is the extent to which, in finding Kemp to be the author, and the rest of the band mere performers, copyright law seems to have adopted a ‘romantic’ model of authorship. (Barron 2006b) (Bently, 2009: 191-192).

Bently has previously asserted that ‘there can be little doubt that, since 1800, cultural assumptions about authorship have informed the development of copyright law’ (Bently, 1994: 979). In seeming agreement, Sawyer suggests that ‘most creative products are collaboratively created, and most of them are built out of existing ideas and components’ (2006: 11). These ideas sit in line with the rational and naturalist tradition emanating from Aristotle’s work on ‘being’ which claims all creative works are built from antecedent conditions. Not surprisingly it can be seen these ideas have also been largely acceded to, by looking at aspects of the current situation in the law. It now recognises, through both quantitative and qualitative tests put in place to identify substantial similarity (e.g. Brodin, 2006: 831-836 and Webber, 2007: 399-406) that a set of antecedent conditions are indeed applicable in most cases. Additionally, as mentioned briefly above, the idea that creative processes are primarily collaborative has also been accumulating a significant body of evidence (Paulus & Nijstad, 2003). So how does this apply to the music industry? Noting that the music industry can’t be simplistically equated only with the recording industry, one major subset of it, it can be seen that nonetheless there are some changes in the structural situation of the music industry. For example in Australia during the 2009-2010 period the Australasian Performing Right Association and the Australasian Mechanical Copyright Owners Society (APRA/AMCOS) ‘claimed total revenues of A$222.1m which was up from the tax year prior’ (APRA/AMCOS, 2010: online). For these collection societies this amount of revenue ‘represented a year on year growth over the last ten years almost doubling 1999-2000 revenues which stood at A$110.5m’ (ibid).

By comparison the Performing Right Society and the Mechanical Copyright Protection Society (PRS/MCPS) in Britain declared revenues for 2008 of £491m (Page & Carey, 2009: 2). The estimated publisher’s direct revenues for that year from PRS stood at £90m. Other sources (Wikstrom, 2009: 93-95) also indicate that there has been an exponential growth in licensing revenues, including performance and sync fees, from approximately US$75m in 1995 to a steadily increasing figure that stood at approximately US$195m in the US and US$180m in the UK in 2008. Furthermore while there was a declared £608.2 m being made by the music industry in Britain (an 8% growth on 2007) there was a 14% growth in performing revenue (£466.6m) with -7% decline in recorded media revenue of £141.6m. So the structural situation is changing. However, while there is talk of gloom for the record industry this does not appear to be the case for publishing. As Williamson and Cloonan suggested in 2007, although;

the recorded music industry still represents about 70 per cent of the ‘music industry’, this percentage is likely to decline substantially in the coming years, largely a result of the growth of the live music industry and the exploitation of publishing and synchronisation rights. These latter industries were estimated in 2004 at being worth $10 billion (Hardy 2005) and $3·8 billion (Enders Analysis 2002), respectively. In addition there are other growth sectors: music DVD and video is now worth $2·6 billion (IFPI 2004), and the Financial Times reported that music publishing has become far more interesting to venture capitalists than the recorded music industry (Hemsley 2005). Meanwhile it is estimated that the legal download industry, such as iTunes and Napster, will be worth $3·9 billion by 2008 (Informa 2003). There is also other evidence to suggest that the economic value of music industries outside of the recording sector is rising. (Williamson & Cloonan, 2007: 314-315).

Given the fact that publishing is built on exploiting songs, rather than recordings, some exploration of the similarities and differences between the two may be apposite here. Bently argues that ‘the inclusion of sound recordings as protected subject matter under UK copyright law … appears to recognize the value of popular music as ‘sound’ rather than musical abstraction embodied in a score’ (2009: 183). Zak, however, suggests that a recording (and one can argue that his typology could be transferrable to a performance) contains:

three distinct compositional layers; the song, the musical arrangement, and the track. The song is what can be represented on a lead sheet; it usually includes words, melody, chord changes, and some degree of formal design. The arrangement is a particular musical setting of the song. It provides a more detailed prescriptive plan: instrumentation, musical parts, rhythmic groove, and so forth. The track is the recording itself. As the layer that represents the finished musical work, it subsumes the other two. That is, when we hear a record, we experience both song and arrangement through the sounds of the track. (Zak, 2001: 24)

Zak goes on to say, apparently in line with Bently (2009), that while the songs and the arrangement can be represented independently and conventionally as supposedly autonomous forms, the identity of the track lies in its actual sound. For Zak ‘cutting tracks, then, is a stage in a multifaceted creative process’ (Zak, 2001: 24). Fitzgerald appears to go one step further than Zak. He suggests that:

various authors (e.g. Hesbacher 1973, p.297; Hennion 1983, p.163; Moore 1993, p.32) have stressed the importance of considering the sound recording as musical text… Hennion (1983, p.161) goes so far as to say that ‘the song is nothing before the arrangement’ – arguing that creation ‘occurs at the moment of orchestration, recording, and sound mixing. (Fitzgerald, 1996: 20–21)

Songs, from this perspective, could not be directly observed as, for many, they only exist as they were used and reproduced in their production and consumption as recordings. For example, Leiber and Stoller, as successful songwriters and producers, were highly aware of the implication this shift in perception had for songwriters. For them, ‘every aspect of a record was considered part of the overall composition, for Leiber and Stoller were among the first American songwriters to realise that in the modern age, songwriting didn’t just mean writing songs, it meant ‘writing records’ (Palmer,1980: 2). They bluntly asserted that, ‘we didn’t write songs; we wrote records’ (quoted in Palmer, 1996: 35). In arguing that ‘twentieth century popular music means the twentieth century popular recording; not the record of something, which exists independently of the music industry, but a form of communication which determines what songs, singers and performances are and can be’ Frith (1988: 12) also suggested a similar position. It is this latter position that mainly interests us here and it is now worth looking at specific cases.

Cases To Contemplate

While cases such as the Johnnie Johnson versus Chuck Berry (Gutman, 2005: online) highlight the long term value of contributing to songwriting, and having written agreements in place to designate this, it can be seen that there is some confusion as to exactly what is being addressed in each of these casea. In the case of Skyhooks, a very popular band in Australia in the seventies, the members themselves could perceive the definitional complexities involved. Fred Strauks, the drummer in the band, attempted to clarify his view:

I’m in two minds about this stuff: The definition of the songwriter is the person who writes the words and writes the chords and the basic melody. Now, that’s what constitutes the song pretty much. Anything after that is the arrangement of the song. Red put so much into the arrangements that he deserved a share of the songwriting royalties. In the early days, it was certainly true that Greg would only come in with a bare sort of skeleton – the chords, the words and maybe a melody – so Red’s contribution was quite amazing. He would even think of middle eights and things to put in the songs, that Greg never envisaged, harmonies and guitar lines that made the song so rich and complex. That was all Red and Bob, but Red did the lion’s share. But Greg was getting paid five times as much as each of us. He would state the basic principles, that Red was basically an arranger, so he gets paid a performance royalty, which includes the arrangement. Greg did not to want to share his royalties in any way. (Strauks quoted in Jenkins, 1994: 107-108).

It is the level of remuneration involved, and the disputes often associated with the allocation of the revenue, that necessitates a thorough understanding of what’s involved in splitting these revenues. The advice a writer in the UK would receive from PRS regarding this matter is that ‘the decision is entirely theirs’ (Hooper, email i/v, 2010). While the 50/50 split may still be ‘reasonably common’ the decision as to how they split the income ‘entirely depends on the contribution each writer agrees they made’ remembering that ‘they can only do a publishing deal on their share of the song’ (ibid). David Donald, Senior A&R manager at Warner Chappell Music, when asked if there were any guidelines he would offer in splitting collaborative work, said:

Each case is different as it is a creative process – it is down to the writers involved to mutually agree the splits. The only rule would be to try and be as honest and open about the discussion. Some bands split everything equally. Others quantify their contribution on each song and divide appropriately. Some well known bands simply state that the song was written by the band and have an internal private agreement on the split of each song. In a writing session an artist could work with two other writers – one being a musician and the other a lyricist and they agree to split the finished song equally 3 ways. However on another day the same writers could come together and work on an idea that artist had already developed and agree to split the finished song 50% to the artist and the remaining 50% split equally between the two writers. A lot of successful co writing though tends to be with the artist and a writer/producer – where they would expect to split the resulting songs 50/50. Often in a writing session where the music and lyrics were started from scratch it would be fair to split the song equally amongst those present. (Donald, email i/v, 2010).

Often the general understanding of how the split occurs depends on the extent of the knowledge of what’s involved and the desire to see the group as a whole benefit. Whiskas the guitarist from Forward Russia, a British band that formed in 2004, considered it wisest to include all members in there split:

I think, as a general rule, the songs wouldn’t exist the same way without anyone person’s influence, so everyone is as valuable as everyone else – a bit like a Jenga puzzle or something! In Forward Russia, we split all songs equally because actually they wouldn’t be the same without anyone of us. As I’ve also already said there were some songs where people weren’t involved at all. There was definitely a decision with us to come up with a blanket agreement for songwriting so as not to cause friction with relationships etc. I’ve often thought it must be hard to balance publishing money especially advance, if it wasn’t all useable to keep a whole band going, as it was due to just one or two member, or disproportionately to a few members. Specifically, with us, the most money we ever got was publishing through Warners, and that funded tours, equipment, living and everything. If that had only been due to a couple of people, it would cause problems and friction as to how the band could survive (i.e. where certain parties had money and others not). (Whiskas, email i/v, 2010).

Geoff Barradale, the manager of Sheffield based rock band Arctic Monkeys, would not be drawn into discussing publishing splits for any of his acts, but his following comments show the position that he would advise:

My advice, if I took a new band on where there was a main songwriter, would be to highlight the financial discrepancy of reward to those four band members five years down the track when they’d sold a couple of million records. The main songwriter, if you did it to the letter of the law would be so substantially better off than [the other] three, that I would deem it as being unhealthy in a collective. I think the vehicle of the band has got some worth in the songwriting if it’s a “routining” songs in the room kind of band…. We all know that record royalties don’t earn you any money really in terms of the modern day record business. They get eaten up in advances. There are very few bands in a plus position with record companies just as a result of their royalties, because there are so many expenses put against it. (Barradale, i/v, 2010).

In the documentary film “Dig” (Timoner, 2005), lead singer and songwriter Courtney Taylor discusses the reasons for the departure of original drummer Eric Hedford in an argument over publishing splits, and in so doing provides evidence of the pragmatic approach that both Geoff Barradale and Whiskas suggest above, as well as perhaps highlighting his own attachment to romantic notions of creativity (italics indicate his vocal emphasis):

I write all the songs, all of the songs. I produce the records, all the records, you know? I do everything and yet I’m giving away half of my songwriting money? Half of it, so that the band can pay rent and have fun and enjoy…enjoy it you know. And that’s not enough? Are you fucking stupid?

In the case of Love & Salt and Resident Filters, who mainly work within the dance genre in the UK, the “band” in each case consists of a musician / composer and an engineer / programmer / editor, with guest musicians, such as vocalists. The team agrees to an equal split of all compositions published even though the engineer/programmer/editor could be classified in traditional publishing industry terms as an arranger/orchestrator. In most cases, though, this producer and his collaborators have tended to start with a beat, using this as the basis for all other aspects of the recording, with the vocal melody often being the final layer. This specific process is now more generalisable across various musical domains. David Donald from Warner Chappell Music, takes account of these recent developments in songwritng practice:

With digital technology people may well not be in the same room and a topline writer may work on a finished backing track and write a chorus part only and then another writer could be used to work on the verses – the backing track may consist of two ideas created by different producers and also feature a sample. Once the sample has been cleared all the other parties would then have to agree on a share they feel is fair. This can be a complicated process! (Donald, email i/v, 2010).

The complexity of deciding who does what and its relative importance is highlighted by the case of The Dissociatives, a side project for both Paul Mac and Daniel Johns, where the split is considered in terms that could be best described as non-traditional. Mac is a classically trained electronic dance music producer having first risen to prominence in Australia as part of Itchy and Scratchy. Johns, an autodidact, is famous as the singer and songwriter with internationally successful rock band Silverchair. Mac’s input to The Dissociatives was based on a significant contribution to song structures and arrangement which opens him up to being described as an arranger and Johns, having produced both the lyric and melody, would be described in conventional terms as the songwriter. From this perspective Mac, just as Love & Salt and Resident Filters’ producer has done, provided the basis for the recordings. The split between these two was worked out with an underlying conception that was both based in a stylistic and a somewhat reworked understanding of the historical context.

I think those definitions are so old-fashioned. I think it was James Brown’s quote ‘well hang on, it’s such a white way of looking at it.’ You can’t copyright a waveline or a drum beat because it’s always the melody that’s deemed to be the thing of value. I think songwriting is not just melody, words and chords. It’s also a headspace. That’s the lesson of techno. So I think whoever’s programming sounds, if you’re doing that, I think it’s of equal value. So I think we’ve looked at it as a sort of new way of sharing the songwriting. (in McIntyre, 2007: 88-89).

With these examples demonstrating a variety of ways of approaching ‘the split’ one aspect of this analysis reveals that, as Whiskas points out, ‘the “song” means different things to different people. But in terms of the legitimate deciding of publishing, it strikes me that it is only what matters to the songwriters themselves’ (email i/v, 2010).

Conclusion

Given the value of the finances at stake in deciding who should, or could, claim authorship in a work of popular music Bently (2009) argues for some modification of the legal framework, in particular the UK but this could be expanded internationally, to recognise and reward collective creative contributions of all types since multiple authorship appears common in popular music recordings. This recognition would steer the legal framework that underpins remuneration toward a view of authorship that includes performance and composition as part of the same creative process and reflects the variety of methods of bringing these works into being. He also suggests that evidence from ‘persons in the trade’ such as record producers, not just expert musicologists, could ‘provide important insights into what is important in any particular recording of popular music’ (Bently, 2009: 198). What this study does is supply some of this evidence. It does so by giving a brief but detailed insight into a highly complex creative world; a world that exists in a dynamic, holistic and ongoing context. It is a world that, while paying lip service to Romanticism in its promotional output, is highly pragmatic when it comes to dividing the spoils of that creativity. The author/genius model, still beloved of promoters and marketing departments and ironically the audiences of popular music themselves, despite the evidence to the contrary (Eckstein, 2009), leads to a ready assumption that single individuals, especially the ones lauded as special and somehow different to the rest of us mere mortals, are the ones who should be rightfully compensated for creativity.

The reality is that there are, as demonstrated by this research, various ways to bring a song into being and ‘the split’, the decision as to who gets what, is dependent not just on complying with a largely outmoded belief system that is still somewhat codified in copyright law, or at least its judicial interpretation in some cases, but tends to comply more readily with a series of hard-nosed and practical concerns that reflect the changing values of the music industry which are intimately linked to an appreciation of the revenues to be made there. These concerns include a consideration of band longevity, the employment of a business ethic seemingly peculiar to the music world, and most importantly, a cognisance of the financial and legal considerations that drive the music industry. In this case the way creativity is remunerated does not evidence a romantic process at all but is one that recognises a multiplicity of realistic situations and necessarily down-to-earth considerations in determining ‘the split’ of this collaborative creative output.

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